Sally Yates Did the Right Thing

As everyone knows by now, Deputy Attorney General Sally Yates determined yesterday that, so long as she was Acting Attorney General, “the Department of Justice will not present arguments in defense of the [January 27] Executive Order [limiting entry of persons from seven majority-Muslim nations], unless and until I become convinced that it is appropriate to do so.” Not surprisingly, President Trump promptly removed her from office, and replaced her with an official who is willing to defend the Order.

My friends Jack Goldsmith and Ben Wittes take issue with Yates’s decision. Instead of announcing that she would refuse to defend the E.O. in court, they insist, she ought to have resigned. I don’t think that’s right.

For one thing, it’s not clear why they think the particular form of Yates’s dissent is so important. Yates knew full well that she would not be the Acting AG today (or within a few days, at latest), whether by way of resignation or removal. She also knew that, in short order, the President would ensure that the Department is run by someone (as it turns out, that’s Dana Boente, presumably followed by Senator Sessions) who does think the Order is lawful and defensible. Therefore, either way, lawyers in the Department of Justice will, in fact, defend the legality of actions DHS takes to implement the Executive Order. If that’s the case, what’s the harm in Yates not resigning?

Indeed, if Matt Apuzzo’s story today is accurate, Yates did consider resigning, and she chose not to do so for a very pragmatic reason: so that the official who would automatically succeed her as Acting AG would not have had to confront the same decision she did about the E.O., just days before a new Attorney General takes office. (I’m not sure exactly who that new Acting AG would have been under the prescribed order of succession—perhaps it would have been Lee Lofthus, a career officer who is the Assistant AG for Administration, or the U.S. Attorney for the District of Columbia, Channing Phillips.) By objecting but not resigning, Yates ensured that the President would immediately appoint someone to be Acting AG who would do his bidding. Which is as it should be. [UPDATE in response to comments: Thus, this is not a case, nor should it be, in which the Department of Justice would not defend the lawfulness of a President’s actions, where the President himself believes those actions to be legal. Of course the President gets the final word, in this or any other case, on what the Department will argue in court. Yates did nothing to prevent that–indeed, neither she nor anyone else is suggesting there is anything wrong with her removal, or with Trump’s appointment of an acting AG (and then a confirmed AG) who will defend the President’s views on the merits. Accordingly, this is not analogous to the question that’s raised (recall Section 3 of DOMA) when the Executive branch as a whole is deciding whether to defend the constitutionality of a statute.]

Wholly apart from that pragmatic consideration–that is, even if Yates didn’t have that reason for not resigning–I assume both Jack and Ben would agree that if Yates concluded that enforcement of the Executive Order would be unlawful, then it could be appropriate for her not to defend it in litigation, notwithstanding the fact that the President concluded otherwise. After all—to give only the most prominent recent example—Jack and many others have, quite properly, praised John Ashcroft and James Comey for refusing to sign surveillance certifications that they considered to be unlawful in March 2004 (the infamous “hospital showdown”), notwithstanding the White House’s contrary legal judgment. (Senator Sessions certainly agrees that officials such as Yates should not defend presidential initiatives that they consider unlawful—indeed, at Yates’s confirmation hearing, he insisted that the AG/DAG must not capitulate to the President in such a case.)

Well, in that’s so, I think it’s fairly evident that that is, indeed, precisely what Yates concluded–namely, that the Executive Order is unconstitutional. To be sure, she did not come right out and accuse the President of what everyone knows to be true–namely, that he was motivated by religious discrimination. No doubt she would have considered it impertinent, and inappropriate, to make such a bald accusation. But her message was clear enough:

— “nor am I convinced that the Executive Order is lawful”;

— “[OLC’s] review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order”;

— her responsibility is to ensure that DOJ offers “our best view of what the law is after consideration of all the facts.”

(Her reference to OLC’s conclusion that the E.O. is “facially” neutral is another giveaway: That is a very unusual formulation; in my experience, OLC does not normally refer to “facial” validity in its form and legality certifications. Yates’s use of it suggests OLC might have concluded merely there was nothing on the face of the E.O. to demonstrate that it was improperly motivated or otherwise unlawful. But that doesn’t resolve the question of whether it is a form of impermissible gerrymandering on the basis of religious denomination. Indeed, it’s entirely possible OLC concluded that the Order would be unconstitutional if it was infected by religious discrimination.)

Like Ben himself, Yates evidently concluded that “[t]here’s simply no reason in reading [the E.O.] to ignore everything Trump said during the campaign, during which he repeatedly called for a ban on Muslims entering the United States.”

Let’s assume, however, that Yates “merely” concluded that the Executive Order is possibly unlawful (“nor am I convinced”), and that it is (in her words) not “consistent with [DOJ’s] solemn obligation to always seek justice and stand for what is right.” If such a profound moral objection—or a conclusion that the requested action would deny “justice”—is sufficient to justify resignation (as everyone including Jack and Ben presumably would agree), why isn’t it sufficient to justify refusal-to-defend followed by certain removal?

Ben is absolutely right about this much: Yates’s refusal to defend the order was “frank insubordination” that ”amply justified, indeed necessitated, her removal.” I’m sure she would concur; indeed, to publicly refuse to comply with a morally odious command was the whole point of her objection, just as it is the point of every act of civil disobedience.

What I fail to see, however, is why, in this case, such civil disobedience “muddied the moral waters of our current situation.” The waters are crystal clear here: On the one hand, as Ben himself says, “Trump’s order is neither right nor just.” Not only is Ben right that it is “malevolent” and based upon “bigotry and religious discrimination,” and that it is designed to “cause hardship and misery for tens or hundreds of thousands of people,” but he’s also right that it will profoundly harm, not advance, the nation’s security and foreign relations.